Jordan v. Shelby Mut. Plate Glass & Casualty Co.

• Citation: 51 F. Supp. 240
• Decision Date: 27 August 1943
• Docket Number: 63.,Civil Actions No. 62
• Parties: JORDAN v. SHELBY MUT. PLATE GLASS & CASUALTY CO. (two cases).
• Court: U.S. District Court — Western District of Virginia

51 F. Supp. 240

JORDAN v. SHELBY MUT. PLATE GLASS & CASUALTY CO. (two cases).

Civil Actions Nos. 62, 63.

District Court, W. D. Virginia, at Danville.

August 27, 1943.

Carter & Williams, of Danville, Va., for plaintiff.

Williams, Robertson & Sackett, of Lynchburg, Va., for defendant.

BARKSDALE, District Judge.

As this case is to be disposed of upon motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, I take it that I am not required by Rule 52 of the Federal Rules of Civil Procedure to find the facts and state separately my conclusions of law thereon. But as some statement of fact is necessary to make this memorandum of opinion intelligible, briefly the facts are as follows:

The Facts.

At and before the time of the accident which is the basis of this action, Thomas J. Hurley was employed by a partnership composed of B. J. and F. P. Kavanaugh, trading as "Lynchburg Rendering Company" and doing business in Lynchburg, Virginia. On May 19, 1938, at the direction of his employer, Hurley drove an automobile owned by his employer from Lynchburg to Winston Salem, N. C., for the purpose of checking in a shipment of hides sold by his employer to a purchaser there. This automobile was kept in the possession of the employer and used by Hurley only occasionally when directed to use it for a specific business purpose. He had never used this or other automobiles of his employer for his own purposes, nor had he ever had this car, or others of his employer, in his possession, except while transacting business for his employer. Hurley, as well as other employees, had been instructed by the employer to never use the company's automobiles for pleasure or personal affairs, or to permit any passengers to ride with them. Nevertheless, contrary to these instructions, Hurley, unknown to his employer, took a friend, one Marcotte, with him from Lynchburg to Winston Salem. Upon arriving there, Hurley found that his business could not be transacted on that day. He telephoned his employer, and was instructed to spend the night in Winston Salem, accomplish his mission the next day, and return to Lynchburg. Thereupon, the friend, Marcotte, insisted that he was obliged to be in Lynchburg the next morning. Solely to accommodate his friend, Hurley then drove his employer's automobile back to Danville, Virginia, hoping that Marcotte could find someone there who would take him to Lynchburg that night. Not finding anyone at Danville who was going to Lynchburg, Hurley then proceeded to drive Marcotte further along the route to Lynchburg, and before reaching Chatham Hurley collided with another automobile, resulting in injuries to Charlie Wilbrun Wheeling and Roma Ferguson Wheeling. Suits were instituted by them and final judgments obtained against Hurley in a state court. In one action, a judgment was also obtained against the employer, upon the theory that Hurley, at the time of the accident, was the agent of his employer. Upon appeal, the judgment against the employer was set aside, the judgment against Hurley being left undisturbed, no appeal having been taken therefrom. Kavanaugh v. Wheeling, 175 Va. 105, 7 S.E.2d 125. Subsequently, both Charlie Wilbrun Wheeling and Roma Ferguson Wheeling were adjudicated bankrupts, and these actions (now consolidated as one action) were brought by their trustees against the insurer of the employer upon the theory that Hurley was an additional insured under the omnibus clause of the employer's public liability insurance policy.

Conclusions of Law.

The pertinent provision of the insurance policy, under which the plaintiff seeks to recover here, is as follows: "Definition of `Insured.' The unqualified word `insured' wherever used in coverages A and B and in other parts of this policy, when applicable to these coverages includes not only the named insured but also any person while using the automobile and any person or organization legally responsible for the use thereof, provided that the declared and actual use of the automobile is `pleasure and business' or `commercial', each as defined herein, and provided further that the actual use is with the permission of the named insured." (Italics mine)

The pertinent portion of Section 4326a of the Code of Virginia, which must be construed as if it were included in the contract of insurance, Newton v. Employers etc., 4 Cir., 107 F.2d 164, 166, is as follows: "* * * No such policy shall be issued or delivered in this State, to the owner of a motor vehicle, by any corporation or other insurer authorized to do business in this State, unless there shall be contained within such policy a provision insuring such owner against liability for damages for death or injuries to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner." (Italics mine)

The statutory language is slightly more favorable to the plaintiff in that it uses the expression, "permission, express or implied, of such owner"; while the language of the policy provision is "the permission of the named insured." Hence, it will be seen that the sole and only question for determination here is whether or not Hurley, the employee of the named insured, was, at the time of the accident which is the basis of this action, operating his employer's automobile with the permission, express or implied, of his employer, the named insured. I am satisfied that Hurley was not at that time operating his employer's automobile with any kind of permission of his employer whatsoever. And, in passing, it is interesting to note that, when another phase of this case was before our Supreme Court of Appeals (Kavanaugh v. Wheeling, 175 Va. 105, at page 115, 7 S.E.2d 125, at page 129), our court, by way of dictum, said: "There is no contradiction of the evidence of either the employers or the driver (Hurley) that the latter used the car without the consent of the former for a purpose directly contrary to the specific instructions of his employers."

Of course, under the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, this is a case for the application of Virginia law. I find no Virginia decision which, in my opinion, requires the conclusion that, under the facts existing here, Hurley was operating his employer's automobile with permission, at the time of the accident.

Of the Virginia cases, plaintiff relies principally upon Maryland Casualty Co. v. Hoge, 153 Va. 204, 149 S.E. 448, and Jones v. New York Casualty Co., D.C.E.D.Va., 23 F.Supp. 932. In his opinion in the Jones case, Judge Pollard concluded that the Hoge case had adopted the doctrine of the case of Dickinson v. Maryland Casualty Co., 101 Conn. 369, 125 A. 866, 41 A.L.R. 500, as the law of Virginia. It is true that the opinion in the Hoge case quotes with apparent approval lengthy excerpts from the opinion in the Dickinson case. In his opinion (23 F.Supp. at page 934), Judge Pollard seems to have assumed that the Dickinson case compelled the conclusion that, "* * * in order to...